House of Commons Hansard Debates for 12 Apr 1994

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spreading and that it has to be stopped. As the pressures build in the liberated eastern European countries following the break-up of the Soviet empire, so ethnic divisions are building up all over Europe, often resulting in ethnic cleansing and wars. Inevitably, we have seen a substantial increase in the number of refugees travelling from one country to another and immigration to countries which have not seen immigration on such a large scale before.

So, too, will the pressures of racism inevitably grow and spread to the United Kingdom. The Committee believes that before that happens we in Britain must realise the likely extent of that evil and start to put up our defences as strongly as we can so that the worst excesses at least can be avoided and this nation can maintain its reputation for being tolerant and decent.

The need for good race relations has always been a primary interest of the Home Affairs Committee and we reported on the matter in 1982, 1986 and 1989. Since then, there have been shocking attacks, murder and violence and the Committee has taken a large amount of evidence from all quarters. We have not yet finalised our report or agreed on all our recommendations, but I am grateful to my colleagues for dealing with this matter with some urgency so that a majority of Committee members, at any rate, have agreed to certain

recommendations and therefore amendments to the legislation. I shall deal with those recommendations under three headings : racially motivated violence, racial harassment which is less than a violent attack, and incitement to racial hatred by such means as hate mail. With regard to racially motivated violence, it is a question of whether violence that is racially motivated should or should not attract a heavier penalty. Most of us believe that we may be able to deter racist attacks by the threat of greater punishment. Of course, some people say that all attacks are criminal and should be punished whatever the motivation and that separating racial motivation is unnecessary and wrong. This has broadly been the Government's line in the past.

4.45 pm

The majority of members of the Home Affairs Committee do not agree with that line. We believe that not only does the identification of racism send the positive signal referred to by the right hon. Member for Gorton to the ethnic minority communities in this country that the law is treating racism seriously, but that an assault motivated by racism is more socially divisive and corrosive of the very fabric of our tolerant society and, for that reason, is itself more serious.

The courts agree with that thinking, as does the existing law. A judge is allowed to take account of aggravating factors, as well as mitigating factors, in passing sentence and racial motivation is understood to be an aggravating factor. Because of this, some of the amendments would create an obligation to put before the court all evidence of racial motivation.

The majority of members of the Home Affairs Committee believe that the matter is so serious, and will become increasingly more so, that the present state of the law is simply not enough. We therefore suggest that new clause 127 should create five new offences of racially motivated assault. This would signal even more strongly to the ethnic communities that we intend to treat the matter more seriously through the power to impose a more

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substantial sentence, which is why the Commission for Racial Equality and other organisations are in favour of the measure. But there is another very important justification. In my view, the police will be likely to search for and find racial motivation only if they are required to do so to fulfil the requirements of a separate offence. Furthermore, if such an offence is to receive a stiffer penalty, a jury should decide whether an attack has been racially motivated. It should not be left to the judge to decide, any more than we leave it to the judge to decide whether the seriousness of an attack satisfies section 18 of the Offences Against the Person Act 1861, or whether it should be a lesser offence under section 20, or an even lesser offence under section 47. A jury should decide the extent of the seriousness of offences of violence.

Mr. Clappison : I am grateful to my hon. and learned Friend for giving way. I am listening with great interest to his argument. Does not the point that he has just made go to the weakness of new clause 13, in that there is a muddle as to whether it creates a new offence ?

Sir Ivan Lawrence : I agree that clarity is all-important, particularly if we want to send the right signals to those who would commit racially motivated offences or those who are the unfortunate victims of such offences.

Once a jury has decided that a racially motivated offence has been committed, the judge must give effect to the jury's verdict. It is less than fair if the decision about whether the evidence is good is left to a judge rather than the jury set up to take precisely that decision. If I were accused of a crime of violence and it was alleged that the crime was racially motivated, I would want the jury to decide that point. I would not want the decision to be taken away from the jury and the judge to be invited to decide whether the evidence that he had heard warranted an increased sentence. If there were no question of an increased sentence, I agree that it would not matter. But an increased sentence because of racial motivation must, in fairness, be decided by a jury.

That seems to be so self-evident that I find difficulty in dealing with the objections to it. At first, Ministers and others told the Select Committee that a racially motivated offence of violence might prevent conviction because, although the principal matter of violence may be proved, if the racial motivation was not proved, a man who was undoubtedly violent would be acquitted. That problem is simply avoided by charging two counts in the alternative : first, single manslaughter, grievous bodily harm, wounding, assault occasioning actual bodily harm, or common assault ; and, secondly, racially motivated manslaughter, grievous bodily harm, wounding, assault occasioning actual bodily harm, or common assault. The added sentence for a racial attack would be passed only if the jury decided that the racially motivated alternatives applied.

We were also told that producing such evidence would require more work by the police. Well, should it not ? If racism is an evil that is spreading and needs to be stopped, should not the police be encouraged to dig out the evidence that would support their allegation ? It will not be difficult for the police to decide whether to charge, as was suggested in evidence to the Home Affairs Committee. It will be for the Crown Prosecution Service to decide whether the offence is racially motivated. That is what it is

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there for and what it does every day of the week. It should not be excused away on the basis that it would be a burden on the police. In any event, if there is a dispute about whether a sentence should be increased because an attack has been racially motivated and the judge is in doubt about the strength of the evidence, he can call for a Newton hearing that will require evidence to be produced so that he can make that judgment. That means that the police must have gone to the effort of finding out whether there was sufficient evidence of racial motivation.

Mr. Kaufman : What worries me about the hon. and learned Gentleman's argument is that he seems to fall into the very trap which the hon. Member for Bury, South (Mr. Sumberg) alleges against new clause 13--that it would be more difficult to convict in the first place under the hon. and learned Gentleman's new clause. He argues that the police would have to delve further in order to obtain evidence that would justify a jury's offering a guilty verdict. New clause 13 says that evidence of the crime should be sufficient to justify a guilty verdict, whereas evidence of racial motivation should be an aggravating element in the sentence.

Sir Ivan Lawrence : I cannot immediately find new clause 13, so I cannot answer the right hon. Gentleman's point. I do not care whose clause supports it, but it must be clear that it is for juries to decide whether there is sufficient evidence of racial motivation. In the first place, it will be for the Crown Prosecution Service to decide whether the police have sufficient evidence of racial motivation--if they have not, an increased sentence should not be imposed because of it.

If they have, the Crown must prove racial motivation not just on one count in an incident, because I agree that a prosecution may fail if there is only one count with two elements. There must be two offences in the alternative so that the jury can decide, on the basis of evidence, whether an offence is racially motivated. Whether an alternative is put in the indictment will depend on whether the Crown Prosecution Service considers that any evidence of racial motivation sustains account. That is how the logic and practice of the courts would work out.

Mr. Kaufman : The hon. and learned Gentleman is arguing himself into a technical corner. It is clearly emerging from the way in which he expounds his new clause that it would be more difficult to convict for a crime of assault unless the crime of assault contains a racial element. It is therefore inherent in his argument that somebody who may have committed a crime of assault may go free because there is insufficient evidence of a racial element.

That is not so under new clause 13, where evidence that an assault has been committed per se will be sufficient to justify conviction. The merit of our new clause is that if, that evidence having been submitted, there is additional evidence of a racial element, the judge could expand the sentence. That is why our new clause is better than the hon. and learned Gentleman's. However, if our new clause falls, I shall vote for his simply because I want something in the Bill, however inadequate it may be.

Sir Ivan Lawrence : I am grateful to the right hon. Gentleman. I have now refreshed my memory about new clause 13. It may confuse the issue. We want a jury to

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convict if it is sure that there was an offence of manslaughter, grievous bodily harm, wounding, assault occasioning actual bodily harm, or common assault, and to convict of the alternative offence if it is sure that there was a racially motivated element. Once those two elements are put into one count, the jury will talk the whole count round.

If it concludes that it is unhappy about the evidence of a racial element, it may rub off on its conclusion about the assault itself. That is why there is merit in what my right hon. and learned Friend the Home Secretary told the Committee about the possibility that a jury would acquit, despite the fact that there was sufficient evidence of an assault.

I do not expect my right hon. Friend the Minister to accept this, but those of us who have practised in the courts with jurors for 30 years know that, from time to time, they say, "We are not too sure about the whole of this count," and they drop the lot. So, although new clause 13 is not wrong, it runs a risk that would be avoided by separating the two counts as I have suggested. Moreover, the person convicted of the crime would know that the jury was sure of the racial motivation and had not simply been swept along by the offence itself and thought, "We do not care whether the offence was racially motivated ; that person must not go free." In addition, the ethnic community will know, from the separate offence, that the law takes the matter seriously. In those circumstances, the Select Committee on Home Affairs--not all of us, but the majority--decided that an offence of racially motivated attack was justified.

Mr. Clappison : Will my hon. and learned Friend give way ? 5 pm

Sir Ivan Lawrence : I hesitate to give way as I have received a sign that I should speed up and there are two other offences that I want to mention.

Is there a need for a new offence of racial harassment to deal with the drip, drip, drip effect of constant harassment ? The Board of Deputies of British Jews, the Commission for Racial Equality, the anti-racist alliance and a number of others all say yes. At present, section 5 of the Public Order Act 1986 deals with all sorts of harassment, not just racially motivated harassment. However, we were told that there were a number of drawbacks.

When we visited the racial unit in Plumstead, the police officers told us that it was not always possible, when bringing a charge, for the prosecution to satisfy a court that a person intended his words, behaviour or action to be threatening, abusive, or insulting under the meaning of the Public Order Act. Even if the person was aware that that might be the result, if he did not intend for it to be so, he was not guilty. The police officers suggested that an objective test would be sensible. If a reasonable man would consider that such acts, deeds and words were likely to cause such a result, that should constitute the necessary intent required under the Bill.

The Minister of State, Home Office (Mr. Peter Lloyd) : I do not want to delay my hon. and learned Friend too long as I know that the House wishes to make progress. However, I think that both my hon. and learned Friend and the police officer to whom he spoke at Plumstead have not

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looked carefully at section 5 of the Public Order Act. It is not a matter of intent, but whether something is likely to cause harassment, alarm or distress.

Sir Ivan Lawrence : That was how it was put to us. We considered it and recognised that as one of the criticisms.

A second criticism was made that the offence under section 5 took no account of the seriousness of many of the acts that were taking place, such as the daubing of swastikas, or putting excreta through a door because a person was a Jew, Muslim, Pakistani or Bangladeshi. I shall not list all the particularly repulsive behaviour that is manifestly racially motivated, but does not necessarily call down under the existing law a sentence which responds to its serious nature.

The third criticism made was that it was an arrestable offence only if the offender repeated his behaviour in the sight of a policeman after a policeman had warned him to stop. The fourth criticism was that the offence attracted a maximum fine of only £1,000. We therefore considered that section 5 was inadequate to deal with the important subject of racial harassment.

The proof of that lies in the fact that, despite the increase in racial incidents--however many there are, the number has been increasing--there has been no increase in the number of charges brought or convictions recorded. As a result, we decided that it would be sensible to toughen the law, which is the basis of our new clause 100. It takes into account all those matters, particularly the one to which my right hon. Friend the Minister has just alluded. Part III of the Public Order Act deals with incitement to racial hatred. The most commonly used sections are 18, which deals with words or displays or behaviour, and covers race hate mail, and section 19, which is intended to deal with publishing or distributing written material. We were told that the amount of racist literature was increasing. In the appendix to its report the Select Committee will publish some examples of the repulsive racist material. I shall not delay matters by referring to them now.

It is inevitable that, as boundaries come down under the single market, more such filth will cross from countries in Europe to Britain. There were strong criticisms of the working of the present legislation, particularly from the Board of Deputies of British Jews, which said that the existing legislation had not proved effective in countering the tide of anti-semitic and other racist literature. It sent us an enormous amount of the sort of literature being circulated.

Three criticisms were levelled at us about that specific aspect of the Public Order Act. The first was that a prosecution could not be instigated without the consent of the Attorney-General. There was a feeling that the Attorney-General sometimes decided that a prosecution should not go ahead for vaguely political reasons--perhaps because it would cause more conflict or distress to do so. Although we had absolutely no reason to think that Attorneys-General had ever made decisions other than perfectly correctly and properly, it seemed to us that there was nothing much to be gained from placing the Attorney-General in the invidious position of having to make such choices.

The Attorney-General already has many problems on his plate without having to go through the countless number of allegations and make decisions. We saw no reason why the Director of Public Prosecutions, together

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with the Crown Prosecution Service, should not make the decisions in those, as in nearly all other, matters. That was our recommendation and it forms one of our amendments.

The second criticism was that the incitement to racial hatred provision did not provide a power of arrest. A person who distributes such material by post cannot easily be found. If there is no power of arrest, by the time that the police arrive at the premises from which they think the material is being distributed the birds have fled and all the forensic signs of their culpability have dried up and disappeared.

We listened to the evidence given to us by a very senior officer at Scotland Yard, Commander Allinson, who was worried about the lack of power of arrest. It seemed to us that if we could provide the power of arrest and the police could act quickly, they could obtain all sorts of forensic evidence that might specifically identify the person responsible. At present the police lack those powers. The third criticism involved the subject of intention. There has to be an intention to stir up racial hatred and only an objective test would be likely to result in a sufficient number of prosecutions. That was part of the recommendation contained in the Bill of my hon. Friend the Member for Finchley (Mr. Booth).

There were other issues ; I shall highlight one that formed the basis of an amendment that we tabled. Under part II of the Public Order Act, senior police officers have the right to impose conditions on, and the Home Secretary has the power to ban, marches, processions and demonstrations if they feel that they might result in serious public disorder, disruption to the life of the community and so on. But the Act does not cover marches and processions involving race hatred. Therefore, the police felt that they were not always able to respond to the community's concerns about marches by right-wing groups which did not, perhaps, result in violence, but which contributed to the climate of fear and hatred among the ethnic minority. Therefore, we have recommended that the Government amend the Public Order Act so that it covers a march or procession invoking the spread of race hatred.

The Select Committee on Home Affairs has attempted to be constructive. If we are right and racism is spreading, is serious and can only get worse, we must do something more about it than the existing law, which has been inadequate. We have come forward with our constructive proposals, to which I hope that my right hon. Friend the Minister will respond positively.

Mr. Peter Lloyd : The House wants to make progress, and as I must say much in response to speeches made today and before the Easter recess, I hope that it may help if I intervene now.

Since we adjourned this debate before Easter, there have been additional amendments from my hon. and learned Friend the Member for Burton (Sir I. Lawrence) and some of his colleagues on the Select Committee. I was interested to read them and I listened with care to my hon. and learned Friend's remarks.

I am sorry that we could not have the Select Committee's report before debating this batch of amendments. It is the Committee's evidence, thoughts and findings rather than its drafting skills from which the Government would have liked to benefit before the debate.

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I hoped--as I know the Select Committee had intended, before it was sidetracked on to another issue--that the report would be published before Christmas.

The Government always take what the Select Committee has to say with great seriousness--doubly so when it involves a difficult subject such as this, which the Select Committee studied for more than a year. Obviously it would be much better for us to reach our own final conclusions after studying its report rather than before. I am glad that one amendment in this batch--new clause 97--gives the police power of immediate arrest in cases of incitement to racial hatred, which chimes with our own thinking.

The Government tabled their own version in new clause 125. It is drafted differently and I believe more suitably, but achieves the same effect. It will enable the police to pursue more effectively not just those who distribute, but, through them, those who produce the appalling material on which my hon. Friend the Member for Hendon (Mr. Marshall) focused our attention in his Adjournment debate before Easter, and against which, inter alia, my hon. Friend the Member for Finchley (Mr. Booth) directed his private Member's Bill. I am pleased to meet one of their particular objectives now.

Before I turn to new clause 13 and the other amendments selected, I will say something about the overall statistics for racial violence and racial harassment--about which the hon Members for Walsall (Mr. Winnick) and for Leyton (Mr. Cohen) and in particular the hon. Member for Caithness and Sutherland (Mr. Maclennan), who provided a revealing breakdown of such incidents recorded by the Metropolitan police, spoke.

When I gave evidence to the Select Committee last July, I made an estimate of 130,000 to 140,000 racial incidents a year, based on data obtained from the 1992 British crime survey. Grossing up the responses from that survey sample for the total ethnic minority population gave that estimate of the number of crimes and threats in 1991 thought by the victim to have been racially motivated. Both the survey and police data such as those quoted by the hon. Member for Caithness and Sutherland suggest that only a minority of incidents involved physical attacks--and, of those, a much smaller proportion were serious. The rest were made up of abusive language, criminal damage and other unpleasant behaviour.

I well understand why hon. Members contrast that estimate of 130, 000 incidents with the 8,000 incidents recorded by the police, but the work done suggests that perhaps 50,000 incidents were reported to the police but not recorded as racial, either because the victims did not mention it as such or the police failed to note that they did. Clearly, it is not possible to know how many of those crimes resulted in prosecutions, but they will have been dealt with on the same basis as similar crimes not felt to be racially motivated. All offences of violence are obviously priorities for the police and are pursued with vigour, but for offences at the other end of the scale, there may be no accessible evidence to identify and successfully prosecute the perpetrator of non-violent harassment--even if it is reported, which it generally is not.

The racial attacks group is currently specifically examining the way in which the police compile their statistics. We need them to be as full and accurate as possible and to be compiled on the same basis between

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forces. We also want to encourage other agencies to use the same categorisation, so we shall know that we are comparing like with like.

Mr. Keith Vaz (Leicester, East) : Will the Minister give way ?

Mr. Lloyd : Not at this moment, because I have not gone deep into my remarks. I shall do so later, if the hon. Gentleman still wishes to make a point.

The British crime survey did not show an increase in perceived racial incidents as a proportion of all crime between 1988 and 1992, when the questions were first asked. Whether there has been an increase between 1992 and 1994 should be revealed in the next edition of the survey, which is due to be published later this year. The apparent sharp increase in racial crime recorded by the police between 1988 and 1992 can be explained, at least in part, by increased efforts by the police to improve their monitoring and recording procedures. I refer in particular to the guidance issued to all forces in 1991. As a result, all police forces have adopted the Association of Chief Police Officers' definition of a racial incident. Racial motivation is flagged up in the report of any incident in which the police officer, victim or any third party believes there to have been a racial element. That certainly broadens the definition and brings more offences within its scope. It is also obvious that the more successful the police in encouraging reporting, the more the number of incidents recorded will increase, without there necessarily being any underlying increase in the number of offences committed. Does the hon. Member for Leicester, East (Mr. Vaz) wish to intervene now ?

5.15 pm

Mr. Vaz : Unfortunately, the Minister is using arguments that he used before, in speaking of classifications, categorisations and definitions. Does he accept that racial attacks are occurring on the streets of Britain and are increasing ? Does he accept that they are affecting the lives of many black and Asian people ? The Government should not hide behind delaying tactics. It is vital that something is done urgently to protect those people.

Mr. Lloyd : The Government are hiding behind nothing. The Government want to be effective, which is why I am trying to lay out the best information that we have. I do not deny that there are a great number of attacks. I shall refer to that point shortly. Perhaps it was unnecessary to give way to the hon. Gentleman

I do not rule out in particular that publicity and

counter-demonstrations in the wake of the British National party victory in Tower Hamlets provoked more mindless thugs to indulge in more racial thuggery. I am sure that, for a long time, ethnic minority communities and some sections of the white community have suffered racial attacks and harassment. What has changed is the declining readiness of those sections of the community to tolerate such treatment, and the growing interest and concern of the rest of the community.

I am certain that the new clauses cover serious matters and I return exactly to the point that the hon. Member for Leicester, East was trying to press. I do not believe that there is any real difference of view between both sides of the House as to our abhorrence of racial violence and our recognition of the hurt and fear that racial harassment can

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bring to individuals, families and communities. Nor do I believe, after reading the new clauses with care, and having listened with interest to what was said in support of them today and previously, that there is any difference between us on the range of violent or cruel behaviour that the law should punish.

All violence is criminal, whether the assailant and victim are the same colour or of different colours, and whether the motive is racial hatred, anger at women or contempt for the weakness of the elderly and disabled. I am glad that the Opposition, in their new clause 13, no longer propose to distinguish between violent crimes--at least as far as the offence is concerned. There is nothing in new clause 13 about a separate offence of racial violence, and that is progress. I am sorry that good sense is not carried over into the subsections on harassment. Again, there appears to be no real difference between us on what antisocial behaviour should be covered by the law. In fact, the very words of subsection 2(1)(a) are lifted directly from the Public Order Act 1986.

However, subsection 2(1)(b) seeks to go further and specifically adds the words

"trespass or nuisance whereby any occupant . . . is likely to be caused harassment, alarm or distress."

I do not believe that it would do much for race relations to create a new offence that has the potential of new clauses 13 and 90 to render certain trespass and nuisance behaviour criminal only when carried out on racial grounds. I do not believe that that would do anything for anyone.

In practical terms, it would be difficult to imagine examples in which such actions could be proven to be racially motivated, unless there was an explicit racial overtone to the behaviour. Simply walking across a garden would not be sufficient without, say, accompanying abuse or implied threat. Of course, if a person were to be verbally abusive, insulting or act in a threatening or harassing way, regardless of whether they were trespassing or not, section 5 of the Public Order Act is already there under which such behaviour may be prosecuted.

Perhaps the hon. Member for Lewisham, Deptford (Ms Ruddock) has something in mind that is not covered by existing law. If not, I have to say to her that, although her new clause gives the first impression of a tough new extension of the law, it will do nothing better to protect the victims of racial offences. If she does have something in mind that is not covered by existing law, I would genuinely like to consider it. But where I especially disagree with these new clauses is that they seek to do for harassment what, as I observed approvingly, Opposition Members wisely no longer seem to seek to do for violence : create a specific and separate offence of racial harassment.

It is always hard to prove motive--harder, I suspect, than many hon. Members allow. My hon. Friend the Member for Bury, South (Mr. Sumberg) was right about that. If that is so and the court finds the racial motive unproven beyond reasonable doubt, should there be a conviction for a standard offence, the judge, in sentencing, will not be able to take racial motivation into account and will have limited scope for taking into account any other racial element.

I fear that writing into the law an additional penalty for racial motive, as in new clauses 13, 50, 89 and 127, may have the opposite effect in an uncomfortably large number of cases to that intended by those who tabled the new clauses. It makes even less sense to do that, as there is

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already a duty on judges and magistrates to take into account the aggravating circumstances surrounding an offence. Indeed, that was written into the Criminal Justice Act 1991. It obviously includes racial hostility and the vulnerability of the victims.

It is plain, both from judges' summing up and the penalties handed down in a growing number of cases, that the courts are taking the racial element firmly into account. The recommendation for minima of 22 and 25 years for the racial murders of Fiaz Mirza, Saddik Dada and Mohammed Sarwar show that the courts are prepared to act when the evidence is there.

Ms Ruddock : I am listening carefully to what the Minister is saying. Is he able to tell the House how many of the offences that have been prosecuted under section 5 of the Public Order Act have been found to be on racial grounds ? Does he have the figures ? Will he tell us how effective the current law is ?

Mr. Lloyd : I cannot, but I would like to be able to. We are currently looking to see how that might be managed so that, as I said earlier, all cases would be flagged up so that we know what happens to them. We could then create those figures at the end of the year. Because there is no separate offence of racial harassment, those figures do not exist at the moment, so I cannot say how many of the cases were overtly racial and in how many of them that factor was taken into account by the court in sentencing.

The racial attacks group, which includes the Commission for Racial Equality and the Crown Prosecution Service as well as the police, is looking at that so that we can provide such information. I do not believe, however, whatever information it produces, that these matters are best handled by legislation, not merely or primarily for the reasons that I have already given, but because of the messages that it will send to the world outside-- the very point that was made by the right hon. Member for Gorton.

Mr. Kaufman : I suspect that, somewhere in a pigeon hole in the Home Office, there is a brief for Ministers to use on this occasion. It was also used by the former Minister of State on 10 April 1986 to reject the proposals of the Opposition at that time. No doubt if the Opposition have to vote with Conservative Members and are not successful today, it will be fished out on a future occasion, too. The Minister has not responded to the prime point of the argument. He says that judges are, of course, at liberty to take into account a racial element when considering a sentence. Being at liberty is very different from being required to take into account a racial element in a crime. Parliament needs to send a signal to members of the ethnic minorities in this country that Parliament has a special concern for them. I hope that, before the Minister sits down, he will respond to that argument, which so far he has failed to do.

Mr. Lloyd : The right hon. Gentleman made two points. The first was the familiarity of some of the arguments that I use. I suggest to him that a good argument retains its freshness, even over the years. On his second point, if he reflects back to the Criminal Justice Act 1991, he will see that the courts are not simply at liberty to take into account what they want, but that they are required to take in fully

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all the circumstances that relate to the case which indicate aggravating features. Perhaps the right hon. Gentleman would like to refresh himself on that.

Mr. Robert Maclennan (Caithness and Sutherland) : Will the Minister give way ?

Mr. Lloyd : No, I must make some progress. If there is a little more time later, I will come back. I want to say a little more about this point.

Mr. Hugh Dykes (Harrow, East) : Will my hon. Friend give way ?

Mr. Lloyd : No, I will not, if my hon. Friend will forgive me. I realise that many hon. Members support a separate offence of racial violence or harassment because of the message that they believe that it would send. They believe that it would reassure ethnic minorities that such crimes against them are taken very seriously. But I suspect that there would be a reaction if, having led them to believe that the law was being strengthened, it was discovered to be neither broader nor more effective and unable to catch a wider range of racially motivated offences.

To be fair, from my strictures I should except new clause 100, which has been tabled by my hon. and learned Friend the Member for Burton, which would replace section 5 of the Public Order Act. It has the great merit of being colour blind. But my approval ends there, for it would make a criminal offence of any trespass or nuisance whereby any occupant of any dwelling is likely to be caused harassment, alarm or distress--so a person who lights a bonfire whose smoke distresses their neighbour, or lets their dog bark incessantly or stray into their neighbour's property and damages it, could be committing a criminal offence. It could, I suppose, apply to intrusive building work.

What is more, the requirement in the current section 5 of the Public Order Act for the conduct to be intentional, or at least for the person engaging in it to have known that harassment, alarm or distress were likely to result, has been deleted. That was not in fact the test that my hon. and learned Friend and the officer whom he met in Plumstead believed was the test in section 5 of the Public Order Act. Such unneighbourly stresses can, I know, be extremely aggravating, but I wonder whether my hon. and learned Friend had them in mind and, if he had, whether he intended to be so sweeping in his extension of the criminal law where the civil law has traditionally provided the remedy.

Perhaps it was that kind of behaviour that the hon. Member for Deptford will tell me that she had in mind for new clause 13(2)(1), but not when it was caused by accident--because it is confined to race--or straight malice, but only when it was racially motivated. But my fundamental criticism of new clause 13 and others is not that they are generally ineffectual, as my hon. Friend the Member for Bury, South said they were, in providing extra protection--they are. My criticism is that I do not believe that Parliament should construct two categories of harassment any more than two categories of violence. It must be wrong to create the impression that there are extra protections for ethnic minorities that are not available for, say, the elderly and the disabled.

Sir Ivan Lawrence rose

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Mr. Maclennan rose

Mr. Lloyd : I shall give way in a moment, but to the hon. Member for Caithness and Sutherland.

The danger is particularly well illustrated by the ill-judged subsection (2) of new clauses 13 and 127, which would require an additional penalty for racial violence which may exceed the maximum penalty otherwise prescribed for that offence. Indeed, under new clause 127, the assailant in a racially motivated common assault could get a sentence 10 times the maximum for any other common assault.

Apart from giving the court power in new clause 13 to impose an additional penalty beyond the maximum set by Parliament for the offence--a departure from every other area of our law where maxima are always enshrined in statute and set to allow for the worst possible example of a particular offence--these new clauses would send a clear message that an assault on the disabled, the elderly or a small child, however cowardly or brutal, could never be punished as severely as it was possible to punish a racial attack.

Mr. Maclennan : I ask the Minister to reflect on the fact that the rights of ethnic minorities are considered under our international commitments--through the European convention on human rights--as matters especially to be protected against discriminatory behaviour. Motivation is also something which the English common law recognises as significant in determining the appropriateness of a penalty ; it is what distinguishes certain types of homicide from murder. It is bizarre that he should say as a matter of principle that the Government are setting their face against treating racially motivated attacks as different in kind from other forms of attack. Surely that is mistaken.

5.30 pm

Mr. Lloyd : I am not saying that they are not sometimes worse than other attacks, and I am certainly not saying that the courts should not take that into account. Indeed, I spent some time saying that the courts did take that fact into account and that it was their job to do so. If race was an aggravating factor, it should be implicit in the way in which the court determines the sentence.

However, I am saying that to give a specific additional sentence for a racial attack when there could be worse attacks on, for example, the elderly, the disabled or children, and on others who are not disabled, elderly or young, sends the wrong message. I am sorry that the hon. Gentleman and some other Opposition Members cannot understand that. The sense of fairness of the community as a whole is quite different from how the hon. Gentleman perceives it. I do not want, and I was sure that no hon. Member would want, to send such a crudely divisive message to the country.

We do not want to bring about circumstances in which a mugged pensioner could say, however unfairly, that if he had been black, his assailant would have had to receive a much heavier sentence, or in which a victimised family, suffering regular harassment from neighbours, could say, "Of course, if we had been a different colour, the police would have had to do something." That would be doubly foolish when the basic reach of the law, certainly where violence is concerned, remains the same under new clause 13 and others, whether or not there is a racial motive.

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So why lead the public to believe otherwise ? Why introduce a potent source of misunderstanding and resentment ? I suspect that to do so was considered an easy way for the Opposition to respond apparently decisively to ethnic minority fears and the appalling experiences that so many have indeed suffered.

I do not impugn the integrity of the hon. Members who have put their names to the new clauses or who have spoken in support of them. I am sure that they are utterly sincere in their desire to provide better protection for ethnic minorities and to build the good race relations on which it must finally depend--it is their wisdom and good sense that I question.

Although new clause 13 and others would no doubt give immediate encouragement to ethnic minorities, it would surely bring cynicism in its train when they began to notice that it secured few, if any, extra prosecutions, especially when it was clear that the price had been to sour race relations and to provide a handle to those who like to argue that the law gives black people a privileged position anyway.

Mr. Vaz : Who are those people ?

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